The ABA Draws a Brightline for Judges Conducting Independent Factual Research

The American Bar Association’s latest formal opinion prohibits judges from conducting independent research on adjudicative facts unless the information is subject to judicial notice. However, judges are permitted to use the Internet to search for general contextual information and to research legislative facts.

Formal Opinion 478 defines an adjudicative fact as one containing information that has factual consequence in determining the outcome of a case—i.e., the who, what, when, where, why and how. A legislative fact, on the other hand, is broad and does not specifically concern the immediate parties at hand.

The opinion offers several hypothetical situations to differentiate between these two types of information. For example, a judge who is assigned to a district with a history of environmental contamination cases may conduct general background learning on the Internet before a case is assigned, and may rely upon that information so long as there is reason to believe that the source is reliable. Conversely, a judge impermissibly gathers information about adjudicative facts when researching the store hours of a specific restaurant while presiding over a case involving a claim of unpaid overtime. There, the restaurant’s hours of operation have factual consequences in determining whether the plaintiff will prevail on the claim.

The ABA derives its bright-line distinction from Model Rule 2.9(C) in the Model Rule of Judicial Conduct. Under Model Rule 2.9(C), a judge’s investigation of facts is restricted to the evidence presented and to any information that may be judicially noticed. Due process protections found in Fed. R. of Evid. 201(e) guarantees that a party is entitled to be heard either before or after a court takes judicial notice of an adjudicative fact.  However, parties do not enjoy the same protections with research of legislative facts because the broad and recurring nature of this information does not raise the same due process concerns as adjudicative facts.

Overall, Formal Opinion 478 aims to preserve judicial impartiality against improper ex parte communications by limiting the scope of independent fact finding not tested by the adversarial process. The ABA emphasizes Model Rule 2.9(D) and reminds judges of their duty to supervise court staff and officials by taking reasonable steps to prevent improper independent investigations. Meanwhile, the ABA also recognizes the utility of the Internet as an important educational tool for today’s judiciary by encouraging judges to draw upon information contained in reliable Internet sources in the same way that they would use information from judicial seminars and books.

To read the ABA’s full opinion, click here.

Insurance Counsel Can’t Advise Client on Misrepresentation

The New York County Bar Association’s Ethics Committee published an opinion advising that an insurance defense lawyer cannot advise the insured whether to inform the insurance carrier about false information or a misrepresentation on the insured’s application. Instead, the Ethics Committee suggests that a lawyer advise the client to seek independent counsel as to whether the client needs to disclose the information to the insurance carrier.

This issue arises because insurance carriers often retain firms as “panel counsel” from which they select counsel to defend insured in lawsuits. The opinion deals with the conundrum that may confront a lawyer, who has been retained as “panel counsel,” and then learns that the insured lied on his application. The opinion describes a lawyer who is confronted with the dilemma of whether to report the client’s lie to the insurance company, who may then deny coverage for the client, or to fail to disclose the misrepresentation at the risk of losing a highly coveted panel counsel position.

The Committee concludes that, in this situation, the lawyer’s client is the insured and therefore the duty to the client is paramount. The lawyer owes a duty of confidentiality to his client under the Rules of Professional Conduct Rule 1.6 (Confidentiality), which restrains the lawyer from revealing an insured’s misrepresentation to the insurance carrier.

However, beyond the duty of confidentiality, the committee notes that the lawyer has a conflict under Rule 1.7 (Current-Client Conflicts), because of his personal, financial interest in his business relationship with the insurance carrier. Thus, the lawyer is not likely to be in a position to advise the client even after full disclosure of the conflict to the client.  Ultimately, the opinion concludes that if the client fails to correct the misrepresentation and thereby insists on pursuing a fraudulent course of action, the lawyer may withdraw.

Find the opinion here.

Written Consents Now Required When a Lawyer Subpoenas a Current Client for Another Client’s Lawsuit

According to a formal opinion issued by the New York City bar’s ethics committee, an attorney who must subpoena a current client for another client’s lawsuit typically has a conflict of interest requiring that the attorney secure informed written consent from both clients.

In considering the issue, the committee reasoned that testifying or producing documents in response to a subpoena are inconveniences that entail loss of money and time for the client subpoenaed. Such requests advanced through a coerced discovery may affect a client’s loyalty towards his or her lawyer. As such, subpoenaing a client involves representation of “differing interests” under Rule 1.7(a).

To prevent a violation of Rule 1.7, the committee advised attorneys to implement conflict-checking procedures before preparing and serving subpoenas. If a conflict is discovered, attorneys must obtain informed consents from both parties. The committee further advised attorneys to run a conflict check prior to being retained if it is apparent that current clients will be subject to discovery. If a conflict is preemptively discovered, the attorney must obtain informed consent from both parties, limit the scope of the representation to exclude the attorney from obtaining discovery, or decline the representation altogether.

Read the full opinion here

To Shred, or Not to Shred: That is the Question – Nebraska Permits Attorneys to Shred Physical Files

The Nebraska Supreme Court’s ethics committee has released an advisory opinion permitting attorneys to destroy physical copies of a client’s closed file so long as it is preserved in electronic form. However, the opinion advises that before a physical file may be digitized and subsequently destroyed, attorneys should consider:

  • the availability and cost of physical and electronic storage space,
  • ease of access to documents,
  • the potential need for original documents in future litigation,
  • preservation of client confidentiality, and
  • any other considerations that are pertinent to the contents of that file.

The advisory opinion was issued in response to a legal services organization’s question regarding whether digitally storing scanned images in lieu of physical storage would satisfy the Nebraska Rules of Professional Conduct, which require attorneys to preserve client files for a period of five years after termination of representation. However, the rules do not indicate whether lawyers are required to preserve those files in physical form. With the release of this opinion, the ethics committee has clarified that with the new advances in technology, it is no longer reasonable OR practical to keep physical or paper copies of every client’s files and thus allowed for the digitizing of files.

Find the full opinion here.

LA County Bar: Attorneys Hooked by Online “Catfish” Risk Ethical Violations

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person. The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”

In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”

In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”

Read the full opinion here.